Timothy Sandefur [Senior Staff Attorney, Pacific Legal Foundation]: "Thirty years ago, in Abood v. Detroit Board of Education, the Supreme Court held that the Constitution is not offended by state laws that take money directly from workers' paychecks to subsidize the activities of unions. This is even true when the subsidies are taken from workers who have chosen not to join the union. The theory here is that non-members benefit from union activities, and if they did not pay for them, they would be "free riders," unfairly obtaining benefits that union members paid for. The problem with this is that this theory would allow any organization to extract coerced subsidies on the theory that people benefit in some indirect way from their activities. And the free rider theory simply does not overcome the moral objection to forcing people to pay for services they did not ask for and may not want. Of course, unions could avoid the free rider problem by writing contracts that only cover their own members, but this would require them to compete with non-union labor.

The Supreme Court has, however, drawn an important line in the coerced union fees cases: unions may not force non-members to subsidize political messages with which they disagree. Unfortunately, this line, while clear, is also easy to evade. Unions have often refused to disclose how much money they spend on political activities, which enables them to deduct most of the usual dues amount from workers' paychecks even when they have chosen not to join the union.

More importantly, unions often adopt unnecessarily complicated procedures that force workers to demand refunds of the portion of their money taken for political activities. These procedures can be so time-consuming and complicated, and the amount of money at stake so small, that workers often just give up rather than spend the time and incur the workplace hostility that goes with opposing the union. Two years ago, in the case of Davenport v. Washington Education Association [PDF file], unions even argued that requiring them to ask permission before taking money from dissenting workers violated the union's free speech rights! The Supreme Court disagreed, rightly holding that the First Amendment does not give unions the right to money earned by others.

In Ysursa v. Pocatello Board of Education, decided on February 24, the Supreme Court reiterated that point: unions have no First Amendment right to deduct money directly from the paychecks of workers. And yet the Court's decision also overlooks some important points that weaken its effectiveness in securing individual rights.

In that case, the state of Idaho had passed a law that prohibited both public and private sector employers from withholding money from workers' paychecks to support political activities, even if the worker wanted the employer to make those deductions. In theory, this law prohibited deductions from going to any political activities, whether by a union or by the Republican party or by anyone else, but since unions are the only organizations that really employ these programs, it was clear that the law was aimed principally at unions. What's more, the state ended up conceding that it was unconstitutional to forbid private sector employers from making these deductions. The question therefore was whether the state could forbid public sector employers - that is, city and county governments - from deducting money from paychecks to support political causes that everyone knows are primarily oriented around unions. Public employees could ask employers to withhold money to support charities like the United Way, but could not ask employers to withhold money to support a political organization.

The union viewed this case as a kind of discrimination: although other institutions were allowed to participate in paycheck-deduction programs, union political activities were singled out and disallowed. This, the unions argued, violated the First Amendment. But to the state, on the other hand, this was simply a management decision by the state about how cities may organize the workplace, and it had nothing to do with the First Amendment.

The Supreme Court decided, 7-2, in favor of the state. Opening the decision with a clear statement, Chief Justice Roberts wrote, "The First Amendment prohibits government from 'abridging the freedom of speech;' it does not confer an affirmative right to use government payroll mechanisms for the purpose of obtaining funds for expression." The Idaho law didn't restrict speech, it merely chose not to fund speech. And although the government does in some cases have to accommodate free speech by private individuals or groups, "it is not required to assist others in funding the expression of particular ideas."

While this is a gratifying acknowledgment, there are two problems with it. First, it does not really go far enough to make a significant difference in the lives of workers whose money is taken against their will to support labor unions. For decades now the Court has been reiterating that the First Amendment does not entitle unions to extract money from workers' paychecks for political activities. But because unions are able to take money for other activities, and because they are not very scrupulous about reporting their expenses, unions can avoid this prohibition in practice. What's more, given that the Court still does not require that unions ask permission first, unions can still force dissenting workers to seek refunds - a procedure that effectively silences most dissent.

Second, the Court's First Amendment reference doesn't really resolve the Ysursa case itself. This case is not a simple one of the state choosing not to subsidize speech - it's a case in which the state forbids workers who wish to subsidize and choose to subsidize speech in this way from doing so, even though the state allows workers to subsidize other organizations, such as charities. As Justice John Paul Stevens wrote in his dissenting opinion, if the state's goal was to avoid the appearance of favoring one political side over another, then it should not at the same time allow workers to choose paycheck deductions to support charitable activities, which often are politically oriented also. "Such deductions will often present a similar risk of creating an appearance of political involvement as deductions for covered political activities." This and other factors made it clear to Justice Stevens that the challenged law was "not a limitation on a state-law entitlement that specifically benefits unions, but rather a union-specific exclusion from a generally available benefit." Indeed, other factors indicated that the statute was an attempt to target union political activity: the law was originally applicable to private employers also, which undermined the state's argument that the law was designed to ensure that the government maintained an image of political neutrality. And the statute appeared in the state's labor code, and included other provisions dealing specifically with unions. But there was a problem with Justice Stevens' dissent, as Justice David Souter pointed out: the union had basically waived this viewpoint neutrality argument. Justice Souter believed the case should simply have been dismissed as improvidently granted.

Although he said it in a different context, Justice Souter's opinion contained one line that very effectively summed up the problem with the Ysursa case: "A decision that ignores the elephant in the room," he wrote, "is a decision with diminished authority." That's surely true. But the elephant in the room in these cases is the fact that unions use paycheck deduction programs to force dissenting workers to subsidize their activities, political or not, without asking permission. Workers who disagree with the union or don't want to support it, are subject to delay, obstruction, harassment and intimidation when they try to assert their rights. Most dissenting workers simply give in and allow the union to take their money rather than make waves and incur hostility in the workplace. And this situation is made possible entirely by the intertwinement of government and labor unions - an intertwinement that is unjust and unconstitutional.

The Supreme Court ought to reexamine the precedent that allows unions to extract money directly from workers without asking permission. There is already good reason for requiring unions to ask first. Many due process cases have made it clear that government may not take away a person's property without giving that person a hearing first, whenever possible. And the court has repeatedly said that it will not presume that an individual intends to waive a fundamental constitutional right without some explicit decision to do so. Moreover, legal history since the Abood decision has made clear how much unions abuse this power for their own ends. The real issue is not whether the Constitution entitles unions to take money directly from workers and the real question is whether the Constitution allows this procedure. That's the real elephant in the room. That power has made labor unions the leading exploiters of workers in the American economy today - not counting government itself. And until the Supreme Court finds that the Constitution forbids them from seizing workers' money without permission, cases like Ysursa are going to continue to be a problem.

The Court should separate unions and government, and forbid union leaders or business managers to enrich themselves through government intervention. Unions, like every other business or community organization, ought to be subjected to the fair and beneficial process of competition and voluntary consent. That alone can secure the rights of individuals and ensure that neither side in the debate between unions and management is subsidizing its expression at the expense of the opposition."